Appeals Panel Agrees with Districts

Ken McLemore

HOPE – The Hope Public School District was among four south Arkansas districts with which a three-judge panel of the U. S. Eighth Circuit Court of Appeals agreed in a Dec. 31 opinion and order concerning the 2019 modification of longstanding federal consent decrees and the application of state school choice law.

“We are pleased with the outcome and we are grateful to our legal team for making the arguments on our behalf,” HPS Superintendent Dr. Bobby Hart said Monday.

The 2-1 decision by the court panel affirms the January, 2019, decision by U. S. District Court Judge Susan O. Hickey finding that the repeal of a 1989 state education law regarding school choice was a significant change in circumstances which justified the modification of a 1988 federal civil discrimination case consent decree applicable to the HPS.

The HPS operated under the Davis v. Franks consent decree and the Arkansas Public School Choice Act of 1989 until the law was changed in 2013, expressly repealing the 1989 law which contained provisions limiting language barring segregative inter-district student transfers. The law was changed again in 2015 to require school districts to submit proof to the Arkansas Department of Education of an active desegregation order for exemption from the law. A change in 2017 further required districts to submit proof of a desegregation order that explicitly limited student transfers between school districts.

The HPS and other districts asked Hickey for modifications to the decrees specifically to limit student transfers under all circumstances that could be deemed racially-based. The Arkansas Department of Education intervened and appealed Hickey’s ruling, arguing that such language created an impermissible inter-district remedy regarding school choice.

“Because there was a substantial change in Arkansas law after the consent decrees were enacted and the district court’s modification was not an impermissible interdistrict remedy, we affirm,” the Court panel said it is 26-page opinion. “…We agree that the laws influencing the consent decrees have clearly changed since the Districts entered into the agreements. Had Arkansas law not prohibited interdistrict transfers when the decrees were enacted, it is likely that the Department of Justice would have required that language similar to the district court’s modification be included in the agreements. A plain reading of the consent decrees shows that they were intended to prohibit all forms of racial segregation.”

The HPS learned of the decision in a Dec. 31 email from its attorneys. The state has 45 days in which to appeal the decision to the full Eighth Circuit Court of Appeals.

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